Forcible DNA Extraction Violated the Constitution

(CN) – A Las Vegas detective violated an inmate’s constitutional rights by “forcibly extracting” his DNA without a warrant while he was shackled and chained to a bench, the 9th Circuit ruled on a 2-1 vote.

The extraction was requested by Deputy District Attorney Elissa Luzaich, who wanted to put Kenneth Friedman’s DNA sample into a cold-case data bank. Friedman was incarcerated at the Clark County Jail, pending prosecution, when detective Dolphus Boucher asked for the sample. Friedman refused and asked to speak with his lawyer. Boucher allegedly denied this request, saying the deputy district attorney had authorized him to take a DNA sample – by force, if necessary. Another detective told Friedman, “We can force you, we’re authorized and you can get hurt pretty bad,” the ruling states. The detectives allegedly threatened to call in other officers to beat him. When Friedman continued to resist, Boucher forced his jaw open and swabbed the inside of his mouth. Friedman was sitting on a bench in chains and shackles, chained to a metal bar on the bench. Friedman sued Boucher and Luzaich in federal court, claiming they violated his constitutional protection against unreasonable search and seizure. The defendants moved to dismiss, asserting qualified immunity. The district court granted their motion in light of the 9th Circuit’s ruling in U.S. v. Kincade, which upheld the compulsory DNA profiling of certain conditionally released federal offenders. On appeal, the defendants cited a Montana law that purportedly allowed them to take the DNA swab. Friedman had previously pleaded guilty to a sex crime in Montana, served his time and was released before moving to Las Vegas. But the Montana statute doesn’t apply across state lines, the San Francisco-based federal appeals court noted in tossing this argument. The court similarly rejected the claim that the swab search was “reasonable.” “The warrantless, suspicionless, forcible extraction of a DNA sample from a private citizen violates the Fourth Amendment,” Judge Thomas wrote. “The actions of the officers were not justified under the ‘special needs’ exception, reliance on an extraterritorial statute, or on general Fourth Amendment principles.” The three-judge panel voted 2-1 to reverse and remand, with Judge Callahan dissenting. Callahan noted that inmates – even pre-trial detainees – have little, if any, privacy expectations, and said the government has compelling interests in identifying jailed repeat sex offenders.“Here, Friedman, a convicted sex offender, was a pre-trial detainee facing charges of indecent exposure and open and gross lewd conduct when the state officials took a buccal swab from the inside of his mouth,” Callahan wrote. “In the parlance of the majority’s opinion, I would hold that this minimally invasive search was ‘reasonable.'”